Fetal Viability and Impairments
Laws permitting abortion in cases of fetal impairment vary in their formulation: Some countries limit the exception to non-viable pregnancies or fatal fetal impairments, others require that the impairment be “serious” or “permanent,” and some countries include a broad exception for fetal impairment. Qualifying terms such as “non-viable,” “fatal,” or “serious” often lack clear medical definitions and can lead to a lack of legal clarity as to whether an abortion is permissible.
Notably, fetal impairment exceptions have been both criticized from a disability rights perspective and misappropriated by actors seeking to undermine the legality of abortion. Disability rights and reproductive rights experts have come together to develop the Nairobi Principles on Abortion, Prenatal Testing, and Disability to ensure that reproductive rights laws and policies support and include women with disabilities. These principles recognize that “there is no incompatibility between guaranteeing access to safe abortion and protecting disability rights”1 and recognize the importance of ensuring abortion is permitted on request, as opposed to on specific enumerated grounds.2
Human Rights Norms
UN Treaty Monitoring Bodies
Treaty monitoring bodies have repeatedly urged States to revise restrictive abortion laws to allow women access to abortion in a range of circumstances, including in cases of serious fetal impairments.3 In K.L. v. Peru, the Human Rights Committee addressed the denial of abortion services to a 17-year-old who was carrying an anencephalic fetus, a severe anomaly causing the fetus to lack parts of the brain with no chance of survival after birth.4 The Human Rights Committee determined that forcing KL to carry to term a non-viable fetus was a violation of her right to be free from cruel, inhumane, and degrading treatment, and her right to privacy.5 In Mellet v. Ireland and Whelan v. Ireland, the Human Rights Committee addressed situations wherein women were compelled to travel abroad to obtain abortion services after receiving diagnoses of fatal fetal impairments.6 In both cases, the Human Rights Committee affirmed that restrictive abortion laws can cause women severe suffering and undermines their personal integrity and autonomy.7 The Human Rights Committee found that, in these cases, this amounted to violations of the right to be free from ill-treatment.8
The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of Persons with Disabilities issued the joint statement Guaranteeing Sexual and Reproductive Health and Rights for All Women, in Particular Women with Disabilities which highlighted that all women, including those with disabilities, are entitled to the full range of sexual and reproductive health rights, including “access to evidence-based and unbiased information” in making autonomous decisions about their health, including whether or not to have an abortion.9 Although this statement does not mention abortion in cases of fetal impairment, it urges states to ensure that all women are able to enjoy their rights and are provided with complete information in order to make autonomous decisions about their health care.10
African Human Rights Bodies
The Maputo Protocol recognizes that abortion must be allowed where the life or health of the fetus is at risk.11
Global Medical Standards
In Safe Abortion: Technical and Policy Guidance for Health Systems, the World Health Organization (WHO) notes that countries that provide lists of impairments can be restrictive, and create unnecessary barriers to pregnant women accessing care. The WHO also firmly states that states should ensure access to prenatal testing services to enable women to make a fully informed decision about her pregnancy.12
- 1. Nairobi Principles on Abortion, Prenatal Testing, and Disability, Preamble
- 2. Id. at art. 7.
- 3. See, e.g. CEDAW Committee, Concluding Observations: Sri Lanka, para. 283, U.N. Doc. A/57/38 (2002); Malta, para. 35, U.N. Doc. CEDAW/C/ MLT/CO/4 (2010); ESCR Committee, Concluding Observations: Mauritius, para. 25, U.N. Doc. E/C.12/MUS/CO/4 (2010); CAT Committee, Concluding Observations: Nicaragua, para. 16, U.N. Doc. CAT/C/NIC/CO/1 (2009); ESCR Committee, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, para. 25, U.N. Doc. E/C.12/GBR/CO/5 (2009); CEDAW Committee, Concluding Observations: Honduras, para. 25, U.N. Doc. CEDAW/C/HON/ CO/6 (2007); CAT Committee, Concluding Observations: Paraguay, para. 22, U.N. Doc. CAT/C/PRY/CO/4-6 (2011); ESCR Committee, Concluding Observations: El Salvador, para. 44, U.N. Doc. E/C.12/SLV/CO/2 (2007); Monaco, para. 23, U.N. Doc. E/C.12/MCO/CO/1 (2006); Chile, para. 53, U.N. Doc. E/C.12/1/Add.105 (2004).
- 4. K.L. v. Peru, Human Rights Committee, Commc’n No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003 (2005).
- 5. Id. at para. 6.3.
- 6. Whelan v. Ireland, Human Rights Committee, Commc’n No. 2425/2014, U.N. Doc. CCPR/ C/119/D/2425/2014 (2017); Mellet v. Ireland, Human Rights Committee, Commc’n No. 2324/2013, U.N. Doc. CCPR/C/116/D/2324/2013 (2016).
- 7. Id.
- 8. Mellet v. Ireland, supra note 6 at para. 7.8.
- 9. CRPD Committee, CEDAW Committee, Guaranteeing Sexual and Reproductive Health and Rights for All Women, in Particular Women with Disabilities https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT/CEDAW/STA/8744&Lang=en (2018)
- 10. Id.
- 11. African Commission on Human and Peoples’ Rights, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), art. 14(2)(c) (2003).
- 12. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 93 (2d ed. 2012) [hereinafter “Safe Abortion Guidelines”].